Trade secrets trump journalism? Apple gets favorable ruling

Apple wins another round in its ongoing battle against Mac news sites over …

In a preliminary ruling last week, Santa Clara County Superior Court Judge James Kleinberg ruled without explanation in favor of Apple Computer and their quest to discover the identities of those leaking product information. The company had demanded that Apple Insider and O'Grady's PowerPage reveal the names of confidential sources who provided information about Asteroid. This week, Judge Kleinberg explained:

Unlike the whistleblower who discloses a health, safety, or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by public officials, the movants [defendants] are doing nothing more than feeding the public's desire for information.

The defendants had sought from refuge from contempt charges, jail time, and a potential life transforming experience under California's shield law. Judge Kleinberg did not address the issue of whether or not the defendants were journalists, rather he deemed that point largely irrelevant. As a result, the Shield law itself did not fare so well.

Easily overstated in its power, "[t]he description 'shield law' conjures up visions of broad protection and sweeping privilege. The California shield law, however, is unique in that it affords only limited protection. It does not create a privilege for newspeople, rather it provides an immunity from being adjudged in contempt.

Based on the language and the facts presented, it is far from clear that Mr. O'Grady qualifies for relief from the subpoena on the grounds advanced. Whether he fits the definition of a journalist, reporter, blogger, or anything else need not be decided at this juncture for this fundamental reason: there is no license conferred on anyone to violate criminal laws

That is the issue  at least for the Court  did the defendants violate the Uniform Trade Secrets Act (USTA), through misappropriation, the "acquisition of a trade secret of another person who knows or has reason to know that the the trade secret was acquired by improper means?" They should have known they were breaking the law, case closed, insert .

Following that line of reasoning, it would seem then that the mainstream media furor over this case is largely an overreaction. Reading the blurb from the Electronic Frontier Foundation, the organization providing legal representation for the defendants tends to support that idea, though they put the best face on it. EFF staff attorney Kurt Opsahl was unsurprisingly dismayed at today's ruling.

We're disappointed that the trial court ignored the Supreme Court's requirement that seeking a journalist's confidential sources be a "last resort" in civil discovery. Instead, the court asserts a wholesale exception to the journalist's privilege when the information is alleged to be a trade secret.

If the bulwark of the defense is simply delaying the inevitable subpoena, it would appear less than formidable. Instead, the issue would seem to be one of protected, or unprotected, speech. Kasper Jade, of Apple Insider, thinks differently regarding the behavior of Apple Legal and his website.

Apple is using this case as a desperate attempt to silence the masses of bloggers and online journalists that it cannot control but feels it can intimidate. Online publications are typically not backed by commercially funded organizations--a weak spot Apple most certainly recognized prior to filing its suits. The company hopes that it can stop or chill the Apple-news industry with its threats.

Kasper probably should have just invoked the anthropomorphic spirit of information and been done with it, rather than make Apple into the bully, though that does not seem to take much effort. Yet, there is something bothersome about this ruling: the seemingly unquestioning value ascribed to the proprietary trade information and its place in society.

What underlies this decision is the publishing of information that at this early stage of litigation fits squarely within the definition of trade secret. The right to keep and maintain proprietary information as such is a right which the California legislature and courts have long affirmed and which is essential to the future of technology and innovation generally.

Perhaps the patent catch phrase for the 21st century should be, "for the technology," replacing "children" as the unassailable good for which all else, including free speech, must be subjugated. That at least sounds better than "trade secret" or "proprietary information" or some other less altruistic wording. If the rules have now changed, and information that is not a "hazard affecting all" can effectively be ruled outside the realm of protected speech at will, then only that information approved by the entity controlling it will be fodder for public discourse. But at least we will have really cool technology.